Scottish Court of Session Decisions

Miss Williamina Taylor, who resided at 122 North Frederick Street, Glasgow, died on 7th October 1909 leaving a trust-disposition and settlement and codicil. By the trust-disposition and settlement she conveyed her whole means and estate, heritable and moveable, to James Cullen Pollok, and to any other persons whom she might thereafter appoint, in trust for the purposes therein set forth.

The trust-disposition and settlement which was dated 30th June 1909, provided, inter alia—“I direct my trustees to pay the following legacies, videlicet, to my nephew Charles Albert Robinson and to my niece Helena Robinson … the sum of One hundred pounds sterling each, to William Mackay Sutherland … ten pounds, and to Mrs Agnes Cullen or Pollok … for many acts of kindness done by them to me, the sum of twenty pounds, to my old friends Miss Emilia Connor … and Mrs Margaret Wright … the sum of five pounds each, to Charles and William Dorward, sons of my cousin, the sum of five pounds each, and to the minister of the Tron United Free Church, Glasgow, the sum of twenty-five pounds, to be applied by him for the benefit of said church in such way as he may consider it best; and lastly, should I leave no writing under my hand disposing of the balance of my said estate, then I give to my trustees full power to pay same over in such proportions as they themselves may decide to the beneficiaries already named or to and amongst any relatives who may be in necessitous circumstances. My said trustees shall be the sole judges of the manner in which the division of said residue and payments thereof shall be made, and no one shall have any right to quarrel or impugn their decision.”

The codicil, which was of date 4th August 1909, provided, inter alia—“I, Williamina Taylor, before designed, the maker of the foregoing settlement, being desirous of making certain alterations thereon and additions thereto, do hereby, in the first place, revoke the legacy of ten pounds sterling to William Mackay Sutherland; in the second place, I increase the legacy of five pounds sterling bequeathed to Miss Emilia Connor to ten pounds sterling; in the third place I leave and bequeath the following

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additional legacies, videlicet:—To Miss Janet Grant… the sum of ten pounds sterling, and to Ernest Taylor, son of my cousin, the sum of five pounds sterling.… And I confirm the legacy of twenty pounds sterling to Mrs Agnes Cullen or Pollok, and except as altered by this codicil I confirm my said trust-disposition.”

Questions having arisen as to the rights of parties under Miss Taylor's testamentary writings, a Special Case was presented to the Court. The first party was James Cullen Pollok, Miss Taylor's sole trustee. The third party was William Mackay Sutherland. The fourth parties were Miss Janet Grant and Ernest Taylor. The second parties were the other beneficiaries under the trust-disposition and settlement.

The Special Case stated, inter alia — “5. The said Williamina Taylor left moveable estate of the value of £837 or thereby. She left no heritable estate.… The said Williamina Taylor left no writings of a testamentary nature other than the said trust-disposition and settlement and codicil. 6. The first party has made inquiry by way of advertisement and otherwise for any relatives of the testatrix other than those mentioned in the trust-disposition and settlement and codicil, but he has been unable hitherto to discover any such, with the exception of a maternal cousin's daughter, who is not in his opinion in necessitous circumstances. 7. Questions have arisen between the parties as to the powers of the first party under the said trust-disposition and settlement and codicil, and as to the nature and extent of the rights of the beneficiaries named therein in the residue of the estate—( a) The first party does not propose to retain or set aside any portion of the residue for division among any relatives of the testatrix other than those named in the trust-disposition and settlement and codicil. He maintains that on a sound construction of the direction with regard to residue contained in the trust-disposition and settlement he is entitled to divide the whole residue among the beneficiaries named in the trust-disposition and settlement and codicil, including the third party, or any one or more of them, in such proportions as he thinks proper. ( b) The second parties maintain that they are the only ‘beneficiaries’ named in the trust-disposition and settlement, and are accordingly the only persons entitled to participate in the residue, and that they are entitled to have the whole of the residue divided among them by the first party in such proportions as he may decide. ( c) The third party maintains that, notwithstanding the revocation by the codicil of the legacy bequeathed to him by the trust-disposition and settlement, he is still a beneficiary named in the settlement, and is entitled to participate in the division of the residue along with the second parties just as if the codicil had not been executed, and that the fourth parties are not entitled to participate in the division. ( d) The fourth parties maintain that they are entitled to a share of the residue along with the second parties, and that the third party is not entitled to any share therein.”

The following questions of law were submitted:—“(1) Is the first party entitled, in exercising the power of division conferred on him by the trust-disposition and settlement, to include, in addition to the second parties, ( a) the third party, and ( b) the fourth parties, or either and which of them? (2) Is the first party bound to set aside any portion of the residue for division among relatives of the testatrix, other than those named in the trust-disposition and settlement and codicil, who may be found by him to be in necessitous circumstances?”

Argued for the first party—Where a discretionary power was given to trustees to select from a class, that involved absolute discretion on the part of the trustees — M'Cormack v. Barber, January 25, 1861, 23 D. 398.

Argued for the second parties — They alone were entitled to the residue. The third party had no right to share therein. His legacy was definitely revoked in the codicil. He therefore was not a beneficiary named in the trust-disposition and settlement. Neither were the fourth parties, whose names only appeared in the codicil. The trustees were not bound to hold any portion of the fund for behoof of necessitous relatives.

Argued for the third party—Though his legacy of £10 was revoked in the codicil, he was one of the beneficiaries already named in the trust-disposition and settlement. He adopted the second parties' argument as to the trustees holding any part of the fund.

Argued for the fourth parties — They were entitled to share in the residue. The will and codicil together were to be regarded as a new will—Theobald on Wills (7th ed.), 146. There was here a bequest to a class of named persons who must qualify the description of beneficiaries. They adopted the second parties' argument on the second point.